ARCHIVED: Comments on the "Model Policy on Public Access to Court Records"

The American Association of Law Libraries is pleased to have the opportunity to submit comments on the proposed "Model Policy on Public Access to Court Records" (Version: 22FEB02) regarding privacy and public access to the records of state and local jurisdictions. We commend the National Center for State Courts and the Justice Management Institute for developing the Model Policy; the Conference of Chief Justices and the Conference of State Court Administrators for requesting that a policy be developed to provide consistency of access and uniformity of rules across state jurisdictions and local courts; and, very importantly, the State Justice Institute for providing the necessary funding for this important project. We are also pleased that this Model Policy has been circulated for public comment by interested stakeholders. We hope that the public response will assist you in your final deliberations towards determining a proper and equitable balance between electronic public access to court records and privacy concerns.

Founded in 1906, the American Association of Law Libraries (AALL) is a non-profit professional organization with over 5000 members nationwide that exists to promote and enhance the value of law libraries to the public, the legal community, and the world; to foster the profession of law librarianship; and to provide leadership and advocacy in the field of legal information and information policy. AALL recognizes that the availability of legal information to all people is a necessary requirement for a just and democratic society. Accessible government information is not only an essential principle of our democratic society but also a valuable public good created at taxpayer expense. It is the obligation of entities at all levels of government, including the courts, to ensure that government and legal information is permanently available to the public at no or low cost, in an easily accessible and professionally maintained environment regardless of format. Hand in hand with the judiciary's responsibility to provide public access to court information are the equally important citizen needs for the public oversight of justice, the accountability of the courts and the public's trust and confidence in the judicial system.

Concurrent with AALL's strong commitment to the public's right to access government information is our equally strong belief that public access through the Internet must be tempered by privacy rights concerning personal information held in government files and private sector databases. We support strong federal and state privacy laws that insulate sensitive personal information from a world of interconnected databases. We agree with the need to find the proper balance between the responsibility of state and local courts to provide broad, equitable public access to information and case files and to protect citizens from harm that may result from broad public access to personal data identifiers, such as Social Security numbers, that may be contained in these records.

AALL has long been committed to improving the public's access to government and legal information. Historically the judiciary has been slower to embrace new technologies to improve public access than legislative and executive entities. The growing trend of Internet use by the public and the legal profession demonstrates the need for the courts to move forward expeditiously towards a more electronic environment for remote users. Nonetheless, the need to recognize and protect personal privacy is paramount, as is the need to ensure the authenticity and integrity of all electronic court information.

Electronic access through the Internet is a powerful capability to capture and broadly make available to the public massive amounts of personal information about individuals. We share the concerns of many that enhanced electronic access to court information such as electronic case files may provide individuals and commercial entities the opportunity to disclose and exploit personal information. In AALL's January 2001 "Comments Regarding Policies Under Consideration to Address Privacy and Security Concerns Related to the Electronic Availability of Court Case Files" to the Judicial Conference of the United States' Committee on Court Administration and Case Management, Subcommittee on Privacy and Electronic Access to Court Files, we stated our belief that that individuals must be aware of and be able to control how their personal information is disseminated and used.
(See http://www.aallnet.org/aallwash/lt01262001.html)

In addition, we noted "that potential harm to individuals must be properly recognized in this policy when:

commercial entities collect and aggregate a variety of publicly available personal information into personal profiles that are sold for profit; and

publicly available personal information leads to criminal activity, such as identity theft or stalking."

Of equal concern to protecting the privacy of individuals from these abuses, however, is determining a proper and just balance. The courts should not overreach and use privacy as a scare tactic to seal records that should be available to the general public or to the press for legitimate purposes. We do not believe that the courts should abridge First Amendment rights to public court records even though there are complex privacy considerations. Certainly the media, citizen groups, the general public, employers seeking information for background checks or investigators use information derived from court records for legitimate purposes.

The American Association of Law Libraries offers the following specific comments on the "Model Policy on Public Access to Court Records" with the request that you take them into serious consideration in your future deliberations.

INTRODUCTION

We agree generally with the concepts framed in the Introduction, including the premises on which the Model Policy is based as well as its dual objectives. We do have one concern, however, regarding premises 2 and 3. We believe that the content of an electronic file should be the same whether it is publicly accessible at the courthouse or through the Internet. Court records may contain personally sensitive information, such as Social Security numbers, medical information, financial records or other personal identifiers. While remote public access to electronic records may appear on the surface to pose a greater threat to privacy, if sensitive personal information is contained in an electronic record that is publicly available at a courthouse, it is likely to find its way into aggregated databases of personal profiles. Therefore the specific types of personal identifiers and other sensitive data that may cause an individual harm should not be made part of the public record in any format.

The Advisory Committee has appropriately noted that the decision by a court to adopt or revise a rule based on the Model Policy must comply with the access and record keeping laws and policies for all judicial records of any kind or use (page 4). Suggested issues that need to be reviewed by state judiciaries and local courts are then listed, and we would like to comment on two of these issues.

First, we agree with the content of the list and believe that the fifth bullet regarding certain types of information now being collected in judicial proceedings is particularly important. It alerts courts to re-examine:

"What personal and financial information is required to be provided on standard forms or pleadings and what specific details are really needed by the court to perform its judicial role."

This is a very important consideration as you develop rules that must balance public access and personal privacy concerns. As to the latter point, we would like to suggest that you must also question whether public access to such specific personal and financial details is really necessary for the public oversight of justice, the accountability of the courts and the public's trust and confidence in the judicial system. As to the former point, we have additional comments on segregating personal identifying information onto special forms under Section 4.30.

We believe that the Model Policy should take a more affirmative stand on liability, as you will see in our comments that follow, and we suggest that liability provisions for non-compliance should be inserted into the following rules:

We generally agree with the stated Purpose of the Policy and the eleven goals that are enumerated on page 5. We believe, however, that one very important goal is missing from the list and suggest that the following be added:

(12) Contributes to the public trust and confidence of the courts.

We also have some concern that, in provisions affecting the purposes of the policy, too little protection is actually provided for the privacy of individuals (the purpose stated in Subsection (a)(8)), while disproportionately greater protections are provided to business proprietary information (the purpose stated in Subsection (a)(9)). As we proceed with our Section-by-Section comments, we will bring to your attention provisions of the Model Policy that we believe fail to adequately accomplish the purposes of the Model Policy and to represent an appropriate balance of competing objectives.

Subsection (a)(8) Protects Individual Privacy Rights and Interests

As noted throughout the draft, the print model of dissemination guarantees some safeguards to privacy due to the practical obscurity of records being available only at a courthouse. Absent from the Commentary to Section 1.00 is a crucial recognition that remote public access through the Internet is an ingredient of the balancing test between access and privacy. The very "broadcast" nature of the Internet-and associated harms the Model Policy itself touches on in the Commentary to Section 4.40-undermine privacy. As we discuss in comments under Sections 4.00 and 4.40, the idea of applying the open access principles of the Model Policy by focusing solely on the types of information involved, independent of technology, format and software, is inadequate and not completely realistic. In our comments on Sections 4.00 and 4.40, we confront problems specific to the dissemination of electronic information and potential harms of bulk distribution of electronic court records.

As further noted in the Commentary to Section 1.00, the proposed "typical test" for privacy involving "(1) whether the release of information is highly offensive to a reasonable person; and (2) whether the release of the information would serve no legitimate public interest" is, we believe, misconceived. First, access to information laws that acknowledge limitations in the name of privacy properly recognize an inherent right to privacy-something much greater than a simple measure of "what is highly offensive to a reasonable person." Second, the two-prong test of this Section of the Model Policy implies that a right of privacy is recognized only where the proponent demonstrates that the public has no legitimate interest. We disagree. The public often has an interest but that interest must be balanced against the personal right of privacy and the public interest may frequently fail to outweigh the privacy interest.

In our view, personal privacy rights are stronger than proprietary rights and that if the move to remote electronic access to court information infringes the personal privacy of innocent parties, the public's trust and confidence in the court system will be reduced. On the other hand, we believe there should be a lower standard regarding access to certain business information because such public access meets the tests of accountability of the judiciary as well as public trust and confidence in the courts. Therefore we suggest the following deletion, as struck through (page 7):

Appropriate respect for individual and business privacy also enhances public trust and confidence in the judiciary.

Section 3.40—DEFINITION OF "IN ELECTRONIC FORM"

The explanation for the Issues Not Addressed in the Policy (page 16) of this Section raises two important concerns. First, this is the only mention in the Model Policy of "whether the information in electronic form is the official record, as opposed to, or in addition to, the information in paper form." The authenticity of electronic information available from the courts must be ensured in some manner. This is particularly true for born digital information, such as electronic case files, for which there may not be an "official" print version. Moving too quickly into remote electronic public access without the ability to ensure the integrity of the information may lead to incidents that will harm individuals when errors have been made in the information, and will thereby result in reduced public trust and confidence in the judicial process.

The second issue concerns the intellectual property rights of attorneys and the question is asked how an attorney might protect copyright and what courts might do to minimize infringement of copyrighted materials. Concern was raised that clerks do not know, nor should they be expected to know, exactly what is or is not protected by copyright. Although copyright registration is not required under U.S. law for copyright to subsist, many authors do register their copyrights because the certificate provides presumptive evidence of the copyright. By requiring the filing of the certificate, the court can rely on an already existing system of copyright registration and not have to get into the business of deciding whether particular writings are or are not under copyright.

Section 4.00—APPLICABILITY OF RULE

Closely analyzing the Model Policy, we find that focusing solely on the information in the court record and, in applying the principle of open access, ignoring completely the form in which the information was created, submitted to the court, stored, presented or maintained is insufficient. We believe, to achieve the appropriate balance between access and privacy, the form of the information cannot be omitted completely from the equation. We already noted that under Section 1.00(a)(8), the Model Policy recognizes that the print model of dissemination guaranteed some safeguards to privacy due to the practical obscurity of records being available only at the courthouse. Under the print model, the inherent limitations of the medium weighed in the balance of access and privacy, and supported open access, even where information inimical to privacy might be accessible.

More significantly, the Model Policy draws an important distinction in Section 4.20 between court records that may only be inspected and those that may be inspected, copied and, for all practical purposes, freely broadcast on the Internet. To effect the protection intended for documents or parts of the court record that are publicly accessible for only a fixed period of time (for example, traffic citations that, pursuant to statute, are destroyed after one year), the provisions require the record to take the form or the characteristics of paper, with its built in limitations. The Model Policy envisions that a prohibition on copying certain records might be effected by requiring third parties who obtain electronic copies to purge the information at the end of the retention period, with a penalty imposed for failure to do so. As a practical matter, the ability to effectively purge such information depends on the form given to the information and the particular software, means of gathering, storing or presenting the information, or the form in which it is maintained. Further, even if today technological solutions existed to make the purging of such information by third parties feasible and practical, there is the additional concern of adequate oversight and compliance.

As we discuss in comments under Section 4.40, we believe applying the principle of open access does require focus on the form of the information. As a practical matter, without appropriate controls built into the media by which records, delivered to information aggregators, are gathered, stored, or presented, or the form in which they are maintained, the appropriate balance of access and privacy cannot be achieved.

Section 4.10—GENERAL ACCESS RULE

We fully support the intent of Subsection (b) to provide information about the existence of court documents to which access is limited or excluded. This appropriately allows for legitimate requests under Section 4.40(b) and 4.50(b). We are once again concerned, however, by an important topic that is relegated to the Issues Not Addressed in the Policy Section (page 19) regarding silence in the Model Policy about keeping a record of, or logging, requests for court records. We believe that with the exception of those who request information that is not publicly accessible and must comply with Section 4.50(c) and sign a declaration, the Model Policy should prohibit such logging or record keeping.

Section 4.30—COURT RECORDS EXCLUDED FROM PUBLIC ACCESS

We believe the Model Policy should dictate more explicitly in Section 4.30(c) additional types of personal and financial information that ought not be released. Prior to the tragic events of September 11th, numerous opinion polls demonstrated that the public is very concerned about the types of information about themselves that is increasingly becoming available through the Internet. The public is also very wary of privacy invasions by companies or by the government. And while pages 22-23 of the Commentary list types of information that should not be open to the public pursuant to federal, or state laws, it must be noted that medical privacy is a great concern to the public and an issue of ongoing debate in Congress. Many believe that current medical privacy laws are inadequate to protect individuals and the Model Policy rule in this area, particularly when state laws range from very weak to very strong, must incorporate the highest degree of protection possible when it comes to the medical and health information of litigants.

Also, on pages 23-24, the Commentary suggests the possible use of forms to segregate some types of personal information and urges that "A state or court considering adoption of an access policy should review its forms and the information parties are required to provide to minimize the gathering of information to which public access ought not generally be provided." In addition to minimizing the collection of such information, we propose that certain types of personal identifiers - such as Social Security numbers, medical records or financial information - could be isolated into a private file to which there would be separate levels of access depending on the requestor's relation to the court and his or her purpose. For example, we believe the court and certain key participants in the judicial process might be granted unlimited access to certain files, while access by other persons would be restricted. Such private files could be password protected to allow remote access by legitimate users.

Section 4.40—REQUESTS FOR BULK DISTRIBUTION OF COURT RECORDS IN ELECTRONIC FORM

As noted in our introduction, we believe that individuals must be aware of and be able to control how their personal information is disseminated and used. We are concerned about risks that might occur when data aggregators or other commercial entities collect and aggregate a variety of publicly available personal information into personal profiles. In that respect, permitting bulk distribution of court records in electronic form raises serious questions that are addressed in the Commentary, including for Subsection (a)-the loss of control over time, with the possibility that the information becomes "incomplete, inaccurate, stale or contains information that has been removed from the court's records" (pages 26-27). The Commentary goes on to point out that "A particular problem with bulk distribution of criminal conviction information has to do with expungement policies."

These are serious issues. Given that some states currently don't allow court records to be sold bulk to third party commercial entities and that the information broker industry remains unregulated, providing bulk distribution to electronic records that contain such vast amounts of personal identifying information is of great concern to us. We believe that this rule carries potential for the misuse of personal information. Our concern is not with the online legal publishing industry that seeks to access court records for the purpose of adding value to them and providing highly demanded enhanced services available through subscriptions. It is rather with bulk distribution to those who seek vast amounts of highly personal information from government databases to create databanks that invade individuals' privacy and over which individuals have no knowledge or control. We do not believe that bulk distribution in this instance meets any of the three goals that are presumably the raison d'etre for the Model Policy: the needs of our citizenry for the public oversight of justice, the accountability of the courts and the public's trust and confidence in the judicial system. In our view, this is another example of an instance when very serious privacy concerns are noted in the Commentary and yet seem not to be adequately addressed in the actual rule. We believe the issue of bulk distribution must be taken more seriously as you modify these rules.

To that end, we urge drafters of the Model Policy to rethink their fundamental idea that the sole focus in the analysis of access versus privacy is the information in the court record. The particular form in which the information was created, submitted to the court, stored, presented and maintained plays a crucial role in achieving the proper balance between access and privacy. The Model Policy recognizes "the 'cost' of reduced public confidence in the judiciary from the existence of inaccurate, stale or incorrectly linked information available through third parties but derived from court records." The policy does not, unfortunately, also recognize the specific harm to privacy interests those very same lapses and failures cause. An answer under the Model Policy's principle of open access is greater attention to technical specifications controlling the form of information. In modifying these rules, we urge that the drafters propound specific database guidelines and standards, designs for data architecture, and exact specifications as to other technologies (e.g., the "tags" referred to in the Commentary to Section 3.20).

The Model Policy's principle of open access is effective only in theory. As a practical matter, its effectiveness in protecting privacy interests depends entirely on a model of perfectly adaptable information technology. Given the acknowledged absence of appropriate technologies, we caution drafters of the Model Policy to heed the example of existing law which in some states significantly restricts data aggregators and other information vendors. In protecting access to public records, such laws may inquire as to who is seeking the information and for what purpose. We note in Los Angeles Police Department v. United States Reporting Publishing Corp. (528 U.S. 32) the Supreme Court found no defect in limiting access to public records based on state law requiring users to show "the request is made for a scholarly, journalistic, political, or governmental purpose or . . . for investigation purposes."

Section 4.50—ACCESS TO COMPILED INFORMATION FROM COURT RECORDS

Regarding Subsection 4.50(b), while we believe that compiled information should be made available to persons for "scholarly, journalistic, political, governmental, research, evaluation, statistical purposes," the rule should be sharpened to include liability, such as signing a declaration that (1) is under penalty of perjury; and (2) would be somehow enforceable by the court, for example, by adding a phrase to the effect that "courts have the discretion to suspend services to any person or entity making false statements."

Section 4.60—REQUESTS TO EXCLUDE INFORMATION IN COURT RECORDS FROM PUBLIC ACCESS OR OBTAIN ACCESS TO EXLUDED INFORMATION

We question how the courts will define the phrase "good cause shown" in Subsections (a) and (b) and suggest that the Model Policy give some guidelines as to what is considered good cause for either restricting or gaining access to information in a court record.

Section 8.10—DISSEMINATION OF INFORMATION TO LITIGANTS ABOUT ACCESS TO INFORMATIN IN COURT RECORDS

Section 8.10 requires the court to inform litigants that information in the court record is accessible to the public, including remotely, but it should be broadened to provide the same information to third parties mentioned in the court record. In addition, we strongly urge that the rule provide litigants and third parties with information about how to restrict access to personal information. We suggest that the rule be amended to read:

The court will: (a) inform litigants and third parties that information in the court record about them is accessible to the public, including remotely; and (b) provide information to litigants and third parties about the process by which they may request restrictions to public access.

Section 8.30—EDUCATION OF COURT EMPLOYEES ABOUT THE ACCESS POLICIES

This is another Section where we believe it appropriate to include liability for knowingly releasing restricted information.

CONCLUSION

AALL is pleased to have this opportunity to comment on the draft Model Policy and we hope that you will consider seriously our suggestions that we believe necessary to strike the proper balance between electronic remote access to court records and the very serious concerns about personal privacy. We applaud your recognition that the public has a right to expect some degree of uniform public access policies across jurisdictions. The Model Policy is a step forward towards this important goal. It also achieves its objectives in raising major issues that must be considered as courts move to improved electronic access to court information through the Internet.

However, the move to broad electronic access to such highly sensitive personal information as that contained in many court records brings its own set of challenges and risks, particularly when technological solutions that might alleviate many privacy concerns of remote electronic dissemination are not yet in place. We would like to conclude by summarizing what we believe to be the most serious concerns with the Model Policy from AALL's perspective:

First, we believe that the Model Policy is too weak in its stand on what harmful content is made available in court records. The draft rules should be much more explicit in limiting the types and amount of personal information released in court records. For example, the draft rules fail to adequately protect the privacy interests of victims, witnesses and others.

Second, as our comments demonstrate, we are very concerned about the bulk distribution of court records and believe that personally identifiable confidential information should not be released in a bulk distribution or compiled form at this time. The Model Policy does not adequately protect individuals from the harms of data aggregators. Simply limiting what sensitive content is contained in court records is not sufficient when it comes to electronic information distributed in bulk. As the Commentary in the Model Draft points out, bulk distribution can result in a loss of control over time, with the possibility that the information becomes "incomplete, inaccurate, stale or contains information that has been removed from the court's records." Without imposing some form of control on bulk distribution, even information that did not at first violate privacy can, in time, cause serious harm to privacy interests.

Third, the two issues noted above serve to illustrate another fundamental concern with the Model Policy. Generally, it seems apparent to us that a careful reading of the Commentary following many of the proposed rules raises very troubling privacy concerns that the model rules often fail to reflect adequately. Time and again, critically important concerns are raised in the Commentary that we believe should be adapted as part of the rule itself.

Fourth, in principle, technology might solve the problem of information that has, for example, gone stale. But unless the drafters of the Model Policy themselves state definite standards for technology involved in the bulk release of court records, there are no adequate technology-based protections on which to rely. Without specific database guidelines and standards, designs for data architecture, and exact specifications as to other technologies, we are compelled to endorse solutions found in existing law-ones that constrain and restrict data aggregators and other information vendors. Absent appropriate technology, we ask state courts to look to solutions set forth in exiting laws that scrutinize who is seeking bulk court information and for what purpose-and limit distribution accordingly.

Fifth, we believe that the public has a right to expect that electronic court records made broadly available through the Internet are both authentic and reliable, and that courts should employ technological solutions to ensure the authenticity and integrity of their public electronic records.

And sixth, our final and very important concern is not at all addressed in the Model Policy. AALL strongly believes that primary legal material, including court information from all jurisdictions, must be in the public domain with no copyright or copyright-like restrictions. In terms of the Model Policy, the only possible exception would be for the intellectual property of attorneys as noted in Section 3.40.

This important issue is explicitly addressed in Section IV.B. of AALL's Government Relations Policy (March 2001):

Government information, including the text of primary legal materials, judicial or administrative decisions, statutes and regulations, must be in the public domain and available to the public without restriction. AALL supports a general prohibition against copyright restrictions on government works. AALL opposes any copyright claims, restrictive licenses, royalty arrangements, statutory or regulatory revisions, or interpretations of federal, state or local laws or regulations that restrict access to, or the use or reuse of, government information.

Thank you for this opportunity to comment on the Model Policy. As law librarians, members of the American Association of Law Libraries are strong advocates of public access and we serve to provide our user communities with access to comprehensive collections of legal and government information. However, the protection of personal privacy is an important core value of our association. As you analyze the comments and revise the proposed rules, AALL urges you to strengthen them on the side of protecting personal privacy over broad public access through the Internet of personal identifying information. If any errors are to be made in striking the right balance between broad electronic access to court records and personal privacy concerns, they should be on the side of reduced access to very sensitive personal information when serious personal risks may be at stake.